Marriage and Substantive Due Process

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All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

In several decisions, the Supreme Court recognized the right to marry as a fundamental right protected by the Due Process Clause,1 such that only “reasonable regulations that do not significantly interfere with the decisions to enter the marital relationship” may be imposed.2 In striking down a state anti-miscegenation law that criminalized interracial marriage, for instance, the Court in Loving v. Virginia held that the law violated due process by depriving individuals of their “freedom to marry” — “one of the basic civil rights of man, fundamental to our very existence and survival” —based on the “unsupportable basis” of racial classification.3

Based on the recognition of this fundamental right, the Court has struck down several state laws that restricted the ability of certain individuals to marry. In Zablocki v. Redhail, for instance, the Court considered a state law that prohibited any resident under an obligation to pay child support from marrying without a court order, which could only be obtained upon a showing that the resident is incompliance with his or her support obligation and that the children were not and were not likely to become public charges.4 Finding that the law “interfere[d] directly and substantially” with the fundamental right to marry and thus required a “critical examination,” the Court held that the restriction was not “closely tailored” to effectuate the relevant state interest of incentivizing compliance with support obligations.5 In the Court’s view, alternative devices to collect payment existed, and the restriction simply prevented marriage without delivering any money to the affected children.6 Similarly, in Turner v. Safley, the Court concluded that a state regulation impermissibly burdened prison inmates’ the right to marry, when it prohibited inmates from marrying unless the prison superintendent has approved the marriage after finding that there were compelling reasons for doing so.7

In Obergefell v. Hodges, the Supreme Court further clarified that the “right to marry” applies with “equal force” to same-sex couples, as it does to opposite-sex couples, holding that the Fourteenth Amendment requires a state to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state.8 In so holding, the Court recognized marriage as being an institution of “both continuity and change,” and, as a consequence, recent shifts in public attitudes respecting gay individuals and more specifically same-sex marriage necessarily informed the Court’s conceptualization of the right to marry.9

More broadly, the Obergefell Court recognized that the right to marry is grounded in four “principles and traditions.” 10 These involve the concepts that (1) marriage (and choosing whom to marry) is inherent to individual autonomy protected by the Constitution; (2) marriage is fundamental to supporting a union of committed individuals; (3) marriage safeguards children and families;11 and (4) marriage is essential to the nation’s social order, because it is at the heart of many legal benefits.12 With this conceptualization of the right to marry in mind, the Court found no difference between same- and opposite-sex couples with respect to any of the right’s four central principles, concluding that a denial of marital recognition to same-sex couples ultimately “demean[ed]” and “stigma[tized]” those couples and any children resulting from such partnerships.13 Given this conclusion, the Court held that, while limiting marriage to opposite-sex couples may have once seemed “natural,” such a limitation was inconsistent with the right to marriage inherent in the “liberty” of the person as protected by the Fourteenth Amendment.14

In the context of federal Social Security benefits, the Court has approved certain benefits restrictions related to the incidents or prerequisites for marriage.15 In these cases, the Court generally found that the regulations at issue did not substantially interfere with the decision to enter into marriage and at most had an indirect impact on that decision.16

1: See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967); Griswold v. Connecticut, 381 U.S. 479, 486 (1965); Cleveland Bd. of Educ. v. LaFleur, 414 U.S. 632, 639–40 (1974); Zablocki v. Redhail, 434 U.S. 374, 383–87 (1978).
2: Zablocki v. Redhail, 434 U.S. 374, 386 (1978).
3: 388 U.S. 1, 12 (1967).
4: 434 U.S. 374, 376 (1978).
5: Id. at 387–88.
6: Id. 388–89. While the Zablocki Court held that the law violated the Equal Protection Clause, the Court applied must of the principles developed in the substantive due process context. See Obergefell v. Hodges, 576 U.S. 644, 673 (2015) (noting that Zablocki's equal protection analysis “depended in central part on the Court’s holding that the law burdened a right of fundamental importance” (internal quotations omitted)).
7: 482 U.S. 78, 94–99.
8: 576 U.S. 644, 665 (2015).
9: See id. at 659–63. But see Dobbs v. Jackson Women’s Health Organization No. 19-1392, slip op. at 23–25 (U.S. June 24, 2022) (evaluating whether right to abortion is a constitutionally protected right based on whether it is “deeply rooted in the Nation’s history and tradition” ).
10: Id. at 665–69.
11: In Pavan v. Smith, the Court reviewed an Arkansas law providing that when a married woman gives birth, her husband must be listed as the second parent on the child’s birth certificate, including when he is not the child’s genetic parent. No. 16-992, slip op. 1 (U.S. June 26, 2017) (per curiam). The lower court had interpreted the law to not require the state to extend the rule to similarly situated same-sex couples. Id. Relying on Obergefell, the Court struck down the law, noting that the “differential treatment of the Arkansas rules infringes Obergefell's commitment to provide same-sex couples ‘the constellation of benefits that the States have linked to marriage.’” Id. (quoting id. at 670).
12: See id. at 665–69.
13: See id. at 672.
14: See id. at 670–71.
15: See, e.g., Califano v. Jobst, 434 U.S. 47, 54 (1977); Matthews v. De Castro, 429 U.S. 181 (1976); Califano v. Boles, 443 U.S. 282 (1979).
16: See Zablocki v. Redhail, 434 U.S. 374, 391 (1978) (Burger, J., concurring) (noting that “[u]nlike the intentional and substantial interference with the right to marry effected by the Wisconsin statute at issue [in Zablocki], the Social Security Act provisions challenged in Jobst . . . at most[ ] had an indirect impact on [the] decision [to marry]” ). For additional discussion of these cases, see Amdt5.7.5 Marriage and Substantive Due Process.